ORDER
U.L. Bhat, J. (President)
1. The common appellant in these appeals engaged in the manufacture of compounded rubber falling under Chapter Heading 4005 (which has only sub-heading 4005.00), filed classification list on 26-4-l989 claiming benefit of Notification [173/86]1 amended till that date as per which partial exemption was available in the case of appellant who was availing Modvat credit on inputs. The Assistant Collector directed provisional assessment on that basis. Subsequently three show cause notices dated 6-11-1989, 18-4-1990 and 12-9-1990 were issued stating that the notification was not applicable and proposing demand of differential duty calculated without the benefit of the partial exemption. The notices were resisted by the appellant. However, the Assistant Collector confirmed the demands and his orders were confirmed by a common order passed by the Collector (Appeals). This order has led to Appeals No. E/971/92-C and E/1123/92-C. Apparently on the direction of the Assistant Collector that demand for succeeding period should be made based on the order passed by the Collector (Appeals), the Range Superintendent sent a letter dated 3-6-1992 proposing demand of differential duty for the succeeding period. This letter of the Range Superintendent is being directly challenged in Appeal No. E/1006/92-C.
2. Chapter Heading 40 deals with rubber and articles thereof. Chapter Heading 4005 reads as follows :-
Heading Sub-heading Description of goods Duty
------- ------------ --------------------- -----
40.05 4005.00 Compounded rubber, unvulcanised in 12%
primary forms or in plates, sheets
or strip, other than the forms and
articles of unvulcanised rubber
described in Heading No. 40.06.
3. Under Notification No. 175/86 small scale industries were granted various degrees of exemptions in respect of goods falling under the annexure to the notification. S. Nos. 1 to 3 of the notification specifically referred to goods falling under various, sub-headings and certain goods falling under particular chapters. Under S. No. 4, all other goods other than those enumerated in Items (i), (ii), (iii) and (iv) were covered. Items (i), (ii) and (iii) of S. No. 4 read thus –
“All other goods specified in the said Schedule, other than the following, namely-
(i) all goods falling under Chapters…
(ii) all goods falling under heading Nos. 21.06, 25.04, 36.03, 40.11, 40.12, 40.13, 87.01, 87.02, 87.03, 87.04, 87.05, 87.06, 87.11, 91.01,91.02 or 96.13.
(iii) all goods falling under sub-headings No. 2101.10, 2101.20, 3304.00, 3305.90, 3307.00, 4005.10, 4006.10, 4008.21 and 9605.10.”
Reading of S. No. 4(iii) of the annexure to the notification will show that goods falling under Heading 4005.00 were not covered by the notification and the benefit of the exemption was not available originally. The notification underwent several amendments many of which are not relevant for our present purpose.
4. Amendment No. 96/89, dated 1-3-1989 introduced consequent to the Budget, brought about extensive changes in the notification and replaced the annexure entirely. Under S. No. (1), (2) and (3) of the new annexure, various goods under various headings, sub-headings and certain specified goods were covered specifically by the notification. S. No. 4 followed the old scheme of specifying goods which were not intended to be covered by the notification. Items (ii) and (iii) of S. No. 4 of the new annexure read as follows :
“(ii) all goods falling under heading No. 21.06, 25.04, 33.04, 33.05, 36.05, 37.01, 37.02, 37.05, 37.06, 40.05, 40.11, 40.13, 84.71, 85.21, 85.26, 87.01, 87.02, 87.03, 87.04, 87.05, 87.06, 87.11, 91.01, 91.02 or 96.13.
(iii) all goods falling under sub-heading No. 2101.10,2101.20, 3307.10, 3302.20, 3302.20, 3307.30, 3307.90, 3703.10, 4005.00, 4006.10, 4008.21 or 9605.10.”
Item (i) of S. No. 4 refers to goods falling under certain Chapters, Item (ii) refers to goods falling under certain headings and item (iii) refers to goods falling under certain sub-headings. It is interesting to note that while item (iii) of S. No.4, as it originally stood and as it stood on 1-3-1989 specifically referred to sub-heading 4005.00, item (iii) of S. No. 4 of the annexure to the original notification did not specifically refer to Chapter Heading 4005 but item (ii) of the replaced annexure specifically referred to Chapter Heading 40.05. In other words, the amendment by Notification No. 96/89, dated 1-3-1989, to this extent, introduced a redundancy. We say so because Chapter Heading 40.05 has only one sub-heading 4005.00. The exclusion in S. No. 4(ii) of goods falling under Chapter Heading 4005 excluded automatically all goods under subheading 4005.00 referred to in item (iii) of S. No. 4. Notification No. 96/89, dated 1-3-1989 was to take effect w.e.f. 1-4-1989 but a day before 1-4-1989 i.e. 31-3-1989, the original notification was further amended by Notification 113/89 by omitting sub-heading 4005.00 in item (iii) of S. No. 4 of the annexure. It is clear that the incorporation of Chapter Heading 4005 in S. No. 4 of the annexure by Notification 96/89 was unnecessary in view of the reference to sub-heading 4005.00 in Clause (iii). The logical way of removing the redundancy was to retain the Chapter Heading Number and omitting the sub-heading number. That was what was (sic.) done by Notification 113/89.
5. As Notification 175/86 stood as amended by various Notifications including the Notification 113/89, goods covered by Chapter Heading 40.05 or sub-heading 4005.00 would specifically stand excluded from the benefit of Notification. This was what the lower authorities held also.
6. Shri K.P. Joshi, learned counsel for the appellant invited our attention to Bombay Collectorate Trade Notice No. 38/89, dated 13-4-1989 seen at page 19 of the Paper Book. The Additional Collector (Tech.), Central Excise, Bombay-I sought to invite the attention of the trade to Notification 175/86 as amended from time to time and in doing so indicated that in view of the omission of the sub-heading 4005.00 in item (iii) of S. No. 4 of the annexure to the original Notification, compounded rubber, unvulcanised in primary forms or in plates, sheets or strips are eligible for exemption under the said Notification. A few days later, Pune Collectorate issued a Trade Notice referring to the same Notification but without giving any conclusion as indicated by the Additional Collector, Bombay. Our attention is invited to Trade Notice No. 76/80 also issued by the Additional Collector, Bombay setting forth the correct legal position that except those goods which might be covered by other S.Nos. in the annexure to the Notification, goods covered by heading No.40.05 would not be entitled to the benefit of notification. Our attention is also invited to the fact that the same officer who issued the earlier Bombay Trade Notice filed Miscellaneous application in these cases stating that the Trade Notice issued earlier by him as Additional Collector has no legal significance and the correct position is as set out in the further clarification in Trade Notice No. 76/80. What is more significant is that the appellant is not within the jurisdiction of the Bombay Collectorate but is within the jurisdiction of the Pune Collectorate. The earlier Trade Notice issued by the Bombay Collectorate relied upon by the assessee proceeds entirely on the basis of the deletion of sub-heading 4005.00 in item (iii) of S. No. 4 of the annexure to the Notification and without any reference to the presence of Heading 4005 in Clause (ii) of S. No. 4 of the annexure to the Notification.
7. In the above circumstances, we are in agreement with the view taken by the lower authorities that the excisable product manufactured by the appellant would not be entitled to the benefit of Notification No. 175/86. Therefore, Appeal No. E/971/92-C and E/1123/92-C are dismissed. Appeal No. E/1006/92-C is not maintainable as it is directed against a letter of demand issued by the Superintendent and not against any order-in-original of the Commissioner of Customs or appellate order of any Commissioner (Appeals) and the same is dismissed.